WildEarth Guardians v. USEPA, et al

Filing

FILED OPINION (M. MARGARET MCKEOWN, MILAN D. SMITH, JR. and JAMES L. ROBART) DISMISSED IN PART; DENIED IN PART. Judge: MMM , Judge: MDS Authoring, Judge: JLR . FILED AND ENTERED JUDGMENT. [9172304]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILDEARTH GUARDIANS,

No. 12-71523
Petitioner,

v.
OPINION
U.S. ENVIRONMENTAL PROTECTION
AGENCY; GINA MCCARTHY, in her
official capacity as Administrator of
the U.S. Environmental Protection
Agency,*
Respondents,
SIERRA PACIFIC POWER COMPANY;
NEVADA POWER COMPANY; THE
STATE OF NEVADA, DIVISION OF
ENVIRONMENTAL PROTECTION,
Respondents-Intervenors.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted
May 14, 2014—San Francisco, California

*

Gina McCarthy is substituted for her predecessor, Lisa P. Jackson, as
Administrator of the U.S. Environmental Protection Agency. Fed. R. App.
P. 43(c)(2).

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WILDEARTH GUARDIANS V. USEPA
Filed July 17, 2014
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and James L. Robart, District Judge.**
Opinion by Judge Milan D. Smith, Jr.

SUMMARY***

Environmental Law
The panel dismissed in part and denied in part a petition
for review of the Environmental Protection Agency’s
approval of the State of Nevada’s State Implementation Plan
for regional haze under the Clean Air Act.
WildEarth Guardians, a non-profit environmental
organization, alleged that Nevada’s State Implementation
Plan (SIP) was inadequate, and the EPA’s decision to approve
it was arbitrary and capricious.
The panel held that WildEarth Guardians lacked Article
III standing to challenge the EPA’s approval of the SIP’s
formulation of reasonable progress goals for improving
visibility conditions in the Jarbridge Wilderness Area in
northeastern Nevada. The panel also held that WildEarth

**

The Honorable James L. Robart, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Guardians had standing to challenge the EPA’s decision to
approve Nevada’s Sulfur Dioxide Best Available Retrofit
Technology determination for the Reid Gardner Generating
Station in southern Nevada, but concluded that the EPA’s
decision was not arbitrary and capricious. The panel further
concluded that the EPA’s approval of Nevada’s SIP did not
violate any requirements imposed by 42 U.S.C. § 7410(1).

COUNSEL
Sarah K. McMillan (argued), WildEarth Guardians, Missoula,
Montana; James J. Tutchton, WildEarth Guardians,
Centennial, Colorado; Melissa A. Hailey, W. Randolph
Barnhart, P.C., Denver, Colorado, for Petitioner.
David A. Carson (argued), United States Department of
Justice, Environment and Natural Resources Division,
Denver, Colorado, for Respondents.
Lisa E. Jones (argued), Samuel B. Boxerman, and James R.
Wedeking, Sidley Austin LLP, Washington, D.C.; Thomas
Woodworth, NV Energy, Inc., Las Vegas, Nevada, for
Respondents-Intervenors Nevada Power Company and Sierra
Pacific Power Company.
Belinda A. Suwe (argued), Carson City, Nevada, for
Respondent-Intervenor State of Nevada, Department of
Conservation and Natural Resources, Division of
Environmental Protection.

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WILDEARTH GUARDIANS V. USEPA
OPINION

M. SMITH, Circuit Judge:
WildEarth Guardians (WildEarth), a non-profit
environmental organization, petitions for review of the
Environmental Protection Agency’s (EPA) approval of the
State of Nevada’s State Implementation Plan (SIP) for
regional haze under the Clean Air Act, 42 U.S.C.
§§ 7401–7671q (CAA). According to WildEarth, Nevada’s
SIP is inadequate, and the EPA’s decision to approve it was
arbitrary and capricious. WildEarth thus contends that the
EPA should have instead developed its own Federal
Implementation Plan (FIP) under the CAA.
We conclude that WildEarth lacks Article III standing to
challenge the EPA’s approval of the SIP’s formulation of
reasonable progress goals for improving visibility conditions
in the Jarbridge Wilderness Area in northeastern Nevada.
While WildEarth has standing to challenge the EPA’s
decision to approve Nevada’s Sulfur Dioxide (SO2) Best
Available Retrofit Technology (BART) determination for the
Reid Gardner Generating Station (Reid Gardner) in southern
Nevada, we hold that the EPA’s decision was not arbitrary
and capricious. We further conclude that the EPA’s approval
of Nevada’s SIP did not violate any requirements imposed by
42 U.S.C. § 7410(l). Accordingly, we dismiss the petition for
review in part and deny the petition in part.
LEGAL, FACTUAL, AND PROCEDURAL
BACKGROUND
This petition for review concerns states’ duty under the
CAA to develop plans aimed at improving visibility in

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“mandatory Class I Federal areas,” such as national
wilderness areas and certain national parks, 40 C.F.R.
§ 51.308, and the EPA’s concomitant duty to ensure that such
plans are legally adequate.
I. Statutory and Regulatory Framework
In 1977, Congress enacted Section 169A of the CAA,
which established “as a national goal the prevention of any
future, and the remedying of any existing, impairment of
visibility in mandatory [C]lass I Federal areas which
impairment results from manmade air pollution.” 42 U.S.C.
§ 7491(a)(1).
A. Implementation Plans
Under the CAA, the EPA must establish national ambient
air quality standards (NAAQS) for certain air pollutants. The
EPA must also promulgate regulations designed to prevent
the impairment of visibility in “mandatory [C]lass I Federal
areas,” including national wilderness areas and certain
national parks. 42 U.S.C. §§ 7491(a)–(b), 7492(e). To
ensure that these standards are met, the CAA requires each
state to submit a SIP to the EPA, which must “contain such
emission limits, schedules of compliance, and other measures
as may be necessary to carry out” the EPA’s applicable
regulations. Id. § 7492(e)(2).
Once a state has submitted its SIP to the EPA, the EPA
reviews it for compliance with the CAA. Id. § 7410(k)(3). If
a state fails to submit a SIP, or if the EPA concludes that a
SIP is inadequate, then the EPA must promulgate a FIP
within two years. Id. § 7410(c).

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B. Regional Haze Provisions

As noted above, Congress amended the CAA in 1977 and
“declare[d] as a national goal the prevention of any future,
and the remedying of any existing, impairment of visibility in
mandatory [C]lass I Federal areas which impairment results
from manmade air pollution.” Id. § 7491(a)(1). To this end,
Congress required the EPA to issue regulations assuring
“reasonable progress toward meeting the national goal.” Id.
§ 7491(a)(4).
Acting under this statutory authority, the EPA
promulgated the Regional Haze Rule in 1999. Regional Haze
Regulations, 64 Fed. Reg. 35714 (July 1, 1999). This rule
required states to submit regional haze SIPs to the EPA by
December 17, 2007. It also requires states to submit SIP
revisions to the EPA by July 31, 2018, and every ten years
thereafter. 40 C.F.R. § 51.308(f).
1. Reasonable Progress Goals
The Regional Haze Rule directs states to establish
reasonable progress goals aimed at achieving natural
visibility conditions in Class I Federal areas. 40 C.F.R.
§ 51.308(d)(1).
These goals must provide for an
improvement in visibility for the days in which visibility is
most impaired over the period ending on July 31, 2018 (worst
days), and must also ensure no worsening of visibility during
the least impaired days over the course of that period (best
days). Id.

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2. BART
In addition to requiring states to establish reasonable
progress goals for improving visibility in Class I Federal
areas, the Regional Haze Rule requires SIPs to “contain[]
emission limitations representing BART . . . for each BARTeligible source that may reasonably be anticipated to cause or
contribute to any impairment of visibility in any mandatory
Class I Federal area.” 40 C.F.R. § 51.308(e). As defined in
the regulations, BART is “an emission limitation based on the
degree of reduction achievable through the application of the
best system of continuous emission reduction for each
pollutant which is emitted by an existing stationary facility.”
Id. § 51.301.
Under the regulations, a pollution source is “BARTeligible” only if it “has the potential to emit 250 tons per year
or more of any air pollutant.” Id. States must formulate
emission limitations for such sources on a case-by-case basis,
weighing the following five factors: (1) “the costs of
compliance”; (2) “the energy and non[-]air quality
environmental impacts of compliance”; (3) “any existing
pollution control technology in use at the source”; (4) “the
remaining useful life of the source”; and (5) “the degree of
improvement in visibility which may reasonably be
anticipated to result from the use of such technology.”
42 U.S.C. § 7491(g)(2); Regional Haze Regulations and
Guidelines for BART Determinations, 70 Fed. Reg. 39104,
39106–07 (July 6, 2005) (codified at 40 C.F.R. pt. 51,
App. Y).
To assist states in evaluating which pollution sources are
subject to BART, and what emission limitation to set for such
sources, the EPA issued the BART Guidelines (Guidelines)

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in 2005. 70 Fed. Reg. at 39156–72. The Guidelines provide
states with a five-step process for making their case-by-case
BART determinations. These five steps subsume the five
statutory factors listed above. Id. at 39127. First, states
identify all available retrofit control technologies. Second,
states eliminate technically infeasible options. Third, states
evaluate the effectiveness of the remaining control
technologies. Fourth, states evaluate the impacts, including
the cost of compliance, the energy impacts, any non-air
quality impacts, and the remaining useful life of the facility.
Finally, states evaluate the visibility impacts. Id. at 39164,
39166.
States must use the Guidelines when making BART
determinations for fossil fuel-fired power plants with a total
generating capacity greater than 750 megawatts, but the
Guidelines are merely advisory for smaller plants. 42 U.S.C.
§ 7491(b)(2)(B); 40 C.F.R. § 51.308(e)(1)(ii)(B). The
BART-eligible power plant at issue here—Reid Gardner—
has a generating capacity below 750 megawatts, and so is not
subject to the mandatory Guidelines. Approval and
Promulgation of Air Quality Implementation Plans, 76 Fed.
Reg. 36450, 36463 (June 22, 2011). Nonetheless, Nevada
relied on the Guidelines in making its SO2 BART
determination for Reid Gardner.
II. Factual and Procedural Background
Nevada submitted its regional haze SIP to the EPA in
October 2009, nearly two years after the deadline for doing
so. In its SIP, Nevada provides what it considers to be
reasonable progress goals for attaining natural visibility
conditions at the Jarbridge Wilderness Area in remote
northeastern Nevada, the state’s only Class I Federal area.

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The SIP further requires limitations on emissions of sulfur
dioxide, nitrogen oxides (NOx), and particulate matter for
several pollution sources, including Reid Gardner, a coalfired power plant in southern Nevada.
In June 2011, the EPA proposed to approve Nevada’s
regional haze SIP. 76 Fed. Reg. at 36450–51. WildEarth
then submitted public comments to the EPA, asserting, inter
alia, that (1) Nevada’s SO2 BART determination for Reid
Gardner is inadequate; (2) Nevada ignored certain mandatory
factors in setting reasonable progress goals for improving
visibility at the Jarbridge Wilderness Area; and (3) the EPA
failed to ensure that approving the SIP would not interfere
with the attainment or maintenance of the NAAQS.
Notwithstanding WildEarth’s concerns, the EPA
approved the majority of Nevada’s regional haze SIP on
March 26, 2012.1 Approval and Promulgation of Air Quality
Implementation Plans, 77 Fed. Reg. 17334 (Mar. 26, 2012).
WildEarth then timely filed this petition for review,
challenging the EPA’s approval of Nevada’s SIP and the
agency’s failure to develop a FIP. Nevada Power Company
and Sierra Pacific Power Company (together, Nevada Power)
and the Nevada Division of Environmental Protection
(NDEP) subsequently intervened.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 42 U.S.C. § 7607(b)(1).
“[W]e may set aside the challenged agency action only if it is

1

The EPA approved the entirety of the SIP except for Nevada’s NOx
BART determination for Reid Gardner. That aspect of Nevada’s SIP is
not at issue here.

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‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” NRDC v. EPA, 638 F.3d 1183,
1190 (9th Cir. 2011) (quoting 5 U.S.C. § 706(2)(A)). “An
agency action is arbitrary and capricious if the agency has:
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Ctr. for Biological
Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109
(9th Cir. 2012) (quoting Pac. Coast Fed’n of Fishermen’s
Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034
(9th Cir. 2001)).
DISCUSSION
I. Standing
Although the EPA does not contest WildEarth’s standing
to bring this petition for review, Nevada Power and the
NDEP assert, respectively, that WildEarth lacks standing to
pursue some or all of its claims. In any event, “standing is
not subject to waiver,” United States v. Hays, 515 U.S. 737,
742 (1995), and we have “an independent obligation to assure
that standing exists, regardless of whether it is challenged by
any of the parties,” Summers v. Earth Island Inst., 555 U.S.
488, 499 (2009) (citing Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986)).
As discussed in greater detail below, WildEarth hinges its
standing to challenge the EPA’s approval of Nevada’s SIP on
a declaration submitted by Veronica Egan, a member of the
organization who lives in Colorado. Even though Egan lives

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out of state, she regularly visits Nevada, and she avers that
(1) seeing pollution from power plants such as Reid Gardner
distresses her; (2) she worries about the health effects of such
pollution; and (3) she visits national parks where visibility
conditions are adversely affected by pollution from Reid
Gardner.
A. Legal Framework
WildEarth has the burden to demonstrate standing for
each claim that it asserts. See DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006). To establish Article III
standing, a claimant “must show (1) it has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)).
As an organization, WildEarth “may assert standing on
behalf of [its] members as long as the ‘members would
otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’” Wash.
Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013)
(quoting Friends of the Earth, 528 U.S. at 181).
In this petition for review, WildEarth plainly seeks to
promote its organizational purpose by requiring the EPA to
reject Nevada’s regional haze SIP and issue a FIP in its place.

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Further, such a claim for relief does not “require[]
individualized proof,” and is “thus properly resolved in a
group context.” Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 344 (1977). Accordingly, whether WildEarth
has standing to assert its claims turns on whether its member,
Veronica Egan, has standing to sue in her own right. See
Friends of the Earth, 528 U.S. at 181.
B. Reasonable Progress Goals for the Jarbridge
Wilderness Area
WildEarth lacks standing to contest the EPA’s approval
of Nevada’s worst days reasonable progress goals for the
Jarbridge Wilderness Area. Under the CAA and its
implementing regulations, Nevada must develop reasonable
progress goals to improve visibility at the Jarbridge
Wilderness Area.
Interestingly, Egan, upon whose
declaration WildEarth places exclusive reliance, has never
visited the Jarbridge Wilderness Area, nor does she have any
plans to travel there in the future. More significantly,
WildEarth fails to demonstrate that the EPA’s approval of
Nevada’s worst days reasonable progress goals has any causal
connection to Egan’s claimed injuries. Accordingly, Egan,
and therefore WildEarth, lacks standing to challenge the
EPA’s approval of this aspect of Nevada’s SIP.
In her declaration, Egan claims that she regularly
“observe[s] air pollution” from the North Valmy Generating
Station (North Valmy), a coal-fired power plant located in
north-central Nevada. She asserts that the EPA approved
Nevada’s SIP even though Nevada failed “to assess whether
air pollution . . . should be reduced from the North Valmy
coal-fired power plant in order to further reduce haze in the
region, including in the Jarbridge Wilderness Area.” And she

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complains that, as a consequence of the EPA’s approval of
Nevada’s SIP, she “will continue to observe offensive
amounts of air pollution from the smokestacks of this power
plant.” She also states that she is “worried that the air
pollution will negatively affect [her] health” as she visits the
area near the plant.
Even assuming, without deciding, that Egan’s concerns
about emissions from North Valmy establish an injury in fact,
WildEarth fails to satisfy the traceability and redressability
requirements of Article III. Egan contends that viewing
emissions from North Valmy is aesthetically displeasing, and
that it leads her to worry about future health consequences.
But Egan fails to show that either her aesthetic displeasure or
her health concerns are causally linked to the EPA’s approval
of Nevada’s worst days reasonable progress goals for
visibility at the Jarbridge Wilderness Area. Wash. Envtl.
Council, 732 F.3d at 1141. Similarly, WildEarth fails to
show that it is likely, as opposed to merely speculative, that
a favorable decision will redress Egan’s injuries. See id. at
1146.
Nothing in the record suggests that a reduction in
emissions from North Valmy would ameliorate Egan’s
claimed aesthetic injury.
Moreover, Egan does not
claim—and the record does not otherwise reveal—that a
reduction in North Valmy’s emissions would improve her
health. In short, Egan does not sufficiently link her claimed
injury near North Valmy with the EPA’s approval of
Nevada’s goals for the Jarbridge Wilderness Area, nor does
she have any credible connection with Jarbridge.
Accordingly, WildEarth fails to establish standing to
challenge the EPA’s approval of Nevada’s worst days
reasonable progress goals for visibility at the Jarbridge

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Wilderness Area, and we dismiss this portion of the petition
for review for lack of subject matter jurisdiction.
C. Reid Gardner SO2 BART Determination
By contrast, as neither the EPA nor Nevada Power
contests, WildEarth has standing to challenge Nevada’s SO2
BART determination for Reid Gardner. In her declaration,
Egan states that she regularly visits Class I Federal areas
where visibility is affected by pollution originating in
Nevada. In particular, she visits Zion National Park in Utah
at least once every other year, she visits Grand Canyon
National Park in Arizona at least once a year, and she plans
to continue visiting both national parks regularly. According
to Egan, these parks “have gotten hazier” over the years,
which has impaired her ability “to view and enjoy the scenic
vistas within these [p]arks.” Egan observes that “[a]ccording
to Nevada, the Reid Gardner coal-fired power plant causes
haze pollution in 24 Class I [Federal] areas outside of the
state, including Grand Canyon and Zion National Parks.” As
such, Egan claims that “[u]nless and until [the] EPA requires
Nevada to better reduce haze-causing pollution, this haze . . .
will continue to negatively impact [her] enjoyment of these
areas if it persists.”
Egan’s declaration suffices to establish WildEarth’s
standing with respect to Nevada’s SO2 BART determination
for Reid Gardner. Because Egan attests to “specific aesthetic
and recreational injuries” resulting from emissions at Reid
Gardner, she adequately demonstrates an “injury in fact.”
Wash. Envtl. Council, 732 F.3d at 1140. Her injury is fairly
traceable to the EPA’s approval of Nevada’s SO2 BART
determination for Reid Gardner because SO2 pollution from
Reid Gardner contributes to visibility impairment at the

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national parks she visits. See id. at 1141 (explaining that, to
show traceability, a plaintiff must demonstrate that her injury
is causally linked to the agency’s alleged misconduct).
Finally, if we ordered the EPA to reject Nevada’s SIP on the
ground that the SO2 BART determination for Reid Gardner
was inadequate, it follows that the EPA’s FIP would likely
impose stricter emission controls on the plant. Because there
is no dispute that a reduction in Reid Gardner’s SO2
emissions would improve visibility at the national parks that
Egan frequents, it is likely that Egan’s injury would be
redressed by a favorable decision. See Friends of the Earth,
528 U.S. at 180–81.
Because (1) Egan would have standing to challenge the
EPA’s approval of Nevada’s SO2 BART determination for
Reid Gardner in her own right; (2) the challenge is germane
to WildEarth’s purpose; and (3) the relief requested does not
require individualized proof, WildEarth has standing to
challenge the EPA’s approval of Nevada’s SO2 BART
determination for Reid Gardner.2
II. Merits of the Reid Gardner SO2 BART Determination
Because WildEarth has standing to challenge the EPA’s
approval of Nevada’s SO2 BART determination, we proceed
to address the merits of WildEarth’s claim.3 First, WildEarth
2

For similar reasons, WildEarth has standing to challenge the EPA’s
alleged failure to ensure that Nevada’s SIP does not interfere with the
attainment or maintenance of the NAAQS under 42 U.S.C. § 7410(l).
3

In its Statement of Issues, WildEarth also suggests that the EPA’s
approval of Nevada’s regional haze SIP was arbitrary and capricious
because Nevada submitted it after the deadline for doing so. But
WildEarth fails to develop this argument in its opening brief, and has

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argues that the EPA erred in approving Nevada’s SIP because
Nevada failed to document adequately its consideration of the
applicable factors. Second, WildEarth asserts that the EPA
erred in approving the SIP because the SIP’s SO2 limitation
for Reid Gardner purportedly authorizes an increase in the
SO2 emission rate at the plant. We address these arguments
in turn.
A. Explanation of the BART Determination
WildEarth’s first argument focuses on the level of detail
in Nevada’s SIP. In describing its BART determination for
Reid Gardner, the SIP provides that “[e]mission limitations
for BART were established on a case-by-case basis taking
into consideration the technology available, the costs of
compliance, the energy and non-air quality environmental
impacts of compliance, any pollution control equipment in
use or in existence at the source or unit, the remaining useful
life of the unit and the degree of improvement in visibility
which may reasonably be anticipated to result from the use of
control technology.” As WildEarth acknowledges, this
description accurately recites the factors that Nevada was
obligated to consider. See 42 U.S.C. § 7491(g)(2).
Nonetheless, WildEarth argues that Nevada’s SIP fails to
document how each of these factors was evaluated when
establishing the SO2 emission limitation for Reid Gardner.
As such, WildEarth contends that Nevada’s SIP contravenes
the requirement that the state “must . . . include
documentation for all required analyses.” 40 C.F.R.
§ 51.308(e)(1). Relying on our case law, WildEarth further
therefore waived it. See United States v. Kimble, 107 F.3d 712, 715 n.2
(9th Cir. 1997).

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observes that “‘[s]tating that a factor was considered . . . is
not a substitute for considering it.’” Beno v. Shalala, 30 F.3d
1057, 1075 (9th Cir. 1994) (quoting Getty v. Fed. Sav. &
Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)).
WildEarth’s challenge to the SIP on this basis is
unavailing. Before Nevada submitted its regional haze SIP to
the EPA, Nevada Power (doing business as NV Energy)
retained the firm CH2M HILL to prepare a BART analysis
for Reid Gardner. The firm applied the EPA’s Guidelines,
explained its reasoning in considerable detail, and
recommended a BART SO2 limitation of 0.40 pounds per
million British thermal units (lb/MMbtu). Nevada then
independently reviewed CH2M HILL’s recommendation and
concluded that a lower emission limitation, 0.15 lb/MMbtu,
was warranted. The SIP directs readers to a detailed
documentation of Nevada’s analysis.
This is not a situation where Nevada simply stated that the
required factors were considered, but failed to consider them.
Cf. Beno, 30 F.3d at 1075. To the contrary, the thorough
discussion in CH2M HILL’s report, and Nevada’s subsequent
evaluation of CH2M HILL’s conclusions, shows that Nevada
conducted the required SO2 BART analysis for Reid Gardner.
Cf. U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 568 (D.C. Cir.
2004) (“[A] federal agency may turn to an outside entity for
advice and policy recommendations, provided the agency
makes the final decisions itself.”); Assiniboine & Sioux Tribes
v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 795 (9th Cir.
1986) (collecting cases for the proposition that agencies may
rely on advice from outside entities so long as agencies do not
merely “rubber stamp” outside decisions). Accordingly, the
EPA’s approval of this aspect of Nevada’s SIP was not
arbitrary and capricious.

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WILDEARTH GUARDIANS V. USEPA
B. Purported Increase in SO2 Emissions

WildEarth next argues that the Reid Gardner SO2 BART
determination is deficient because it allows for increased
emissions. Nevada’s regional haze SIP fixes an SO2 emission
limitation of 0.15 lb/MMBtu at Reid Gardner. According to
WildEarth, this limitation exceeds recent emission rates at the
plant, which in 2009 ranged from 0.054 to 0.058 lb/MMbtu.
Because this data apparently shows that Reid Gardner is
capable of maintaining lower SO2 emissions than the 0.15
lb/MMBtu level that Nevada claims represents BART,
WildEarth asserts that Nevada’s emission limitation for SO2
at Reid Gardner cannot constitute BART. WildEarth also
asserts more broadly that a SIP authorizing increased SO2
emissions at Reid Gardner would violate Congress’s intent in
enacting the 1977 amendments to the CAA.
WildEarth’s objection to Nevada’s SO2 BART
determination rests on a misinterpretation of the relevant data.
Specifically, WildEarth’s contention that the SIP authorizes
increased emissions at Reid Gardner depends on its analysis
of annual emission rates at the plant. But, as the EPA
observes, annual emission rates are not comparable to the 24hour average emission limitation reflected in Nevada’s SIP.
77 Fed. Reg. at 17338. A review of 24-hour average SO2
emissions at Reid Gardner reveals that the plant has not
consistently achieved a 24-hour average limit below 0.15
lb/MMbtu.
Moreover, even if Reid Gardner only
occasionally exceeds 0.15 lb/MMBTU on a 24-hour basis,
emission limitations under the CAA are continuous in nature,
and BART must be a limitation that can be achieved on a
continuous basis. See 42 U.S.C. § 7602(k); 40 C.F.R.
§ 51.301. Further, the EPA’s review of the data refutes
WildEarth’s claim that, under the SIP, there will be an annual

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increase in SO2 emissions from Reid Gardner. 77 Fed. Reg.
at 17338. Thus, WildEarth fails to show that the SIP will
exacerbate pollution from Reid Gardner.
The EPA’s decision to approve this aspect of Nevada’s
SIP is entitled to considerable judicial deference, as it
represents “an agency’s determination in an area involving a
‘high level of technical expertise.’” Lands Council v.
McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (quoting
Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954
(9th Cir. 2003)), abrogated in part on other grounds by
Winter v. NRDC, 555 U.S. 7, 22 (2008); see also Ass’n of
Irritated Residents v. EPA, 423 F.3d 989, 997 (9th Cir. 2005)
(explaining that determinations that are “scientific in nature”
are “entitled to the most deference on review”). Particularly
when reviewed under this deferential standard, the EPA’s
decision to approve Nevada’s SO2 BART determination for
Reid Gardner was not arbitrary and capricious.
III.

Interference with Attainment or Maintenance of
the NAAQS

Finally, WildEarth argues that the EPA’s approval of
Nevada’s SIP was arbitrary and capricious because the EPA
did not make an express finding that the SIP does not
interfere with the attainment or maintenance of the NAAQS.
According to WildEarth, the EPA was obligated to make such
a determination under 42 U.S.C. § 7410(l), which provides
that the EPA “shall not approve a revision of a [SIP] if the
revision would interfere with any applicable requirement
concerning attainment and reasonable further progress.”
Even assuming, without deciding, that § 7410(l) applies
here, WildEarth’s argument is unavailing. Wildearth

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WILDEARTH GUARDIANS V. USEPA

identifies nothing in Nevada’s SIP that weakens or removes
any pollution controls. And even if the SIP merely
maintained the status quo, that would not interfere with the
attainment or maintenance of the NAAQS. Accordingly,
WildEarth fails to show that the EPA’s approval of Nevada’s
SIP contravened § 7410(l).
CONCLUSION
For the foregoing reasons, we dismiss the petition for
review in part and deny the petition in part.
PETITION DISMISSED IN PART AND DENIED IN
PART.

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